The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com

Tuesday, October 08, 2013

Tuesday news and notes

1. David Mandel, the lawyer who got the huge verdict against TD Bank in the Coquina case, participated in a charity boxing event and knocked down his opponent. Check out the video here.

2. Kim Rothstein's lawyer Scott Saidel was sentenced to 3 years in federal prison yesterday. From the Sun-Sentinel:

The courtroom was packed Monday morning, nearly 30 strong with supporters of the fallen attorney.Saidel's defense attorney, Tama Beth Kudman, said her client was not driven by profit or greed and that he erred by viewing Kim Rothstein as a friend rather than a client."He saw this woman drowning and he tried to help her," Kudman told the judge. "She was losing everything in the world through no fault of her own. … He handled this horribly, and what he did was absolutely wrong."Kudman, in her quest for a minimal sentence, emphasized Saidel's "extraordinary life of kindness, and empathy and giving.""He has lost his career … his wife and child have moved out of their home. … He has no money left," Kudman said. "He's lost everything in the world."As part of his plea deal, Saidel has agreed to forfeit $515,000 to federal authorities — including the $65,000 he received in legal fees from Kim Rothstein, four expensive pens and a pair of mother of pearl, diamond and sapphire cuff links.Federal prosecutor Lawrence LaVecchio did not discredit Saidel's good deeds or cooperation with authorities, but he did take issue with minimizing the forethought and planning that went into the scheme to hide the jewelry."Nobody gets dragged into federal criminal court in cases like these because they committed errors in judgment," LaVecchio said. "It's not some isolated event, or lapse in judgment, that brought the defendant here today."From a lectern in the middle of the courtroom, Saidel offered a round of apologies to the government, prosecutors, the judge, the Florida Bar, friends, family and — his voice cracking with emotion — to his client, Kim Rothstein."I am profoundly sorry for the conduct that led me here today," he said. "I apologize to my family and friends, who I have let down and hurt and embarrassed, and to my client Kimberly Rothstein, who might not find herself standing here in this very same spot at a later time, if I had simply been a better lawyer."

Seems like a huge sentence to me. What are your thoughts?

3. Meantime, why do misbehaving prosecutors get a pass in court opinions? The Huffington Post examines the interesting issue in this interesting article:

Last month, a three-judge panel from the U.S. Court of Appeals for the Ninth Circuit ruled that a prosecutor in San Mateo County, Calif., committed "textbook" misconduct when she "knowingly elicited and then failed to correct false testimony" during an armed robbery trial. A judge from the U.S. District Court for the Northern District of California also found misconduct in the case, but ruled it was a "harmless error" and upheld the conviction of the defendant, La Carl Martez Dow. The appeals court panel overturned that ruling, and Dow's conviction.But an important detail was missing from both those rulings -- the prosecutor's name, Jennifer Ow. At the time of Martez Dow's conviction, she was an assistant district attorney for San Mateo county. She currently holds the same title in Nevada County, Calif.Earlier this year, the U.S. Supreme Court declined to hear an appeal alleging misconduct by a federal prosecutor who made racially offensive remarks during a drug trial in Texas. Justice Sonia Sotomayor wrote a separate opinion that excoriated the prosecutor, who, she wrote, "tapped a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our Nation." "It is deeply disappointing to see a representative of the United States resort to this base tactic more than a decade into the 21st century," she wrote. "Such conduct diminishes the dignity of our criminal justice system and undermines respect for the rule of law. We expect the Government to seek justice, not to fan the flames of fear and prejudice."But Sotomayor didn't name the prosecutor, either. And while her opinion attracted a fair amount of media attention, those initial accounts also failed to give the prosecutor's name.Ken White, a former federal prosecutor who now blogs at Popehat.com, checked the legal document service PACER and tracked down the name: Sam L. Ponder. He is still an assistant U.S. attorney in Texas.After White found Ponder's name, many media outlets amended their original reports to include it. But the case is an exception. The names of misbehaving prosecutors are rarely if ever included in appellate court opinions that find misconduct. Those opinions aren't all that well covered in the media to begin with, but when they are, it can take a fair amount of digging for a reporter on the courts beat to match the prosecutor to the case. So most don't.There's no formal rule precluding the publication of a prosecutor's name in an opinion. White says it's more about professional courtesy. "It's tradition. It's an informal practice driven by the government's fairly strong stand that the names shouldn't be published," he said. "I've seen some really egregious, outrageous examples of misconduct in which the government actually asked for opinions to be republished to remove names of specific prosecutors."

4. The Sun-Sentinel has this long piece on how the Sunrise police department and others like it are making millions off of the cocaine business:

Police in this suburban town best known for its sprawling outlet mall have hit upon a surefire way to make millions. They sell cocaine.Police confiscate millions from these deals, money that fuels huge overtime payments for the undercover officers who conduct the drug stings and cash rewards for the confidential informants who help detectives entice faraway buyers, a six-month Sun Sentinel investigation found.Police have paid one femme fatale informant more than $800,000 over the past five years for her success in drawing drug dealers into the city, records obtained by the newspaper show.Undercover officers tempt these distant buyers with special discounts, even offering cocaine on consignment and the keys to cars with hidden compartments for easy transport. In some deals, they’ve provided rides and directions to these strangers to Sunrise.This being western Broward County, not South Beach, the drama doesn’t unfold against a backdrop of fast boats, thumping nightclubs or Art Deco hotels.It’s absurdly suburban.Many of the drug negotiations and busts have taken place at restaurants around the city’s main attraction, Sawgrass Mills mall, including such everyday dining spots as TGI Fridays, Panera Bread and the Don Pan International Bakery.Why would police bring criminals to town?Money.
5. Is a hot bench always a good thing at the Supreme Court. The NY Times looks into it:

The Supreme Court has what lawyers call a hot bench, and temperatures are rising.

“The hot bench is a bench that asks a lot of questions,” Judge J. Harvie Wilkinson III explained at a judicial conference in June. “The Supreme Court bench seems to me to get hotter and hotter and hotter.”

The justices returned to that bench on Monday. Over the summer, several of them acknowledged that things had gotten out of hand in their courtroom, with their barrage of questions sometimes leaving the lawyers arguing before them as bystanders in their own cases.

Judge Wilkinson, who sits on the federal appeals court in Richmond, Va., made his observations in a public conversation with Chief Justice John G. Roberts Jr. The chief justice pleaded guilty, even as he explained that some people misunderstand the nature of oral arguments.

“First of all, there are excuses for it,” Chief Justice Roberts said.

“We don’t talk about cases before the argument,” he went on. “When we get out on the bench, it’s really the first time we start to get some clues about what our colleagues think. So we often are using questions to bring out points that we think our colleagues ought to know about.”

Justice Ruth Bader Ginsburg made a similar observation to me in August. “Oral argument questions are often directed more to a colleague than to the lawyer,” she said. “It’s a little unruly.”

In remarks at Harvard last month, Justice Elena Kagan agreed. “There’s no doubt,” she said, “that part of what oral argument is about is a little bit of the justices talking to each other with some helpless person standing at the podium who you’re talking through.”

Before Justice Kagan joined the court, she argued before it as United States solicitor general, and she learned to make her points quickly.

“You don’t get a chance to talk in paragraphs at the Supreme Court,” she said.

Chief Justice Roberts gave another reason for the warming trend.

“Recent appointees tended to be more active in questioning than the justices they replaced,” he said, referring to Justices Kagan and Sonia Sotomayor. “It’s nothing bad about either of them. It’s just a fact.”

Justice Ginsburg defended her new colleagues, noting that Justice Antonin Scalia is also a frequent questioner.

“These women are not shrinking violets,” she said. “Justice Sotomayor won the contest with Scalia for who would ask the most questions at oral arguments this year. It’s always Scalia, but this year it was Sotomayor.”

It falls to Chief Justice Roberts to be the traffic cop when two or more of his colleagues try to talk at once, and it is a role he does not relish.

“I’ve had to act as,” he said, pausing to search for the right word, “an umpire in terms of the competition among my colleagues to get questions out.”

There seems to be a consensus that the justices should moderate their volubility.

“It is too much, and I do think we need to address it a little bit,” Chief Justice Roberts said. “I do think the lawyers feel cheated sometimes. It’s nice for us to get a good feel for where everyone else is, but it also would be nice for them to have a chance to present their argument.”

8 comments:

Anonymous
said...

Brillian juxtaposition: clearly you intended the question of whether Saidel's sentence was excessive to be rhetoric? Saidel's conduct as an attorney was abysmal. That conduct caused the attorney to lose his license, half-million dollars, gifts and most importantly: reputation. However, a prosecutor can abuse the very trust given to her by her position, or he can demonstrates a deep seeded racial bigotry and that IS just a "lapse of judgment?" That reputation can remain unblemished? If "such conduct diminishes the dignity of our criminal justice system and undermines respect for rule of law," why then don't we protect it and punish prosecutors when they engage in that conduct? Why do the court's "protect" the very people who are undermining that dignity but rail the same professionals who also fail, but who fail on the other side of the courtroom? Is it any surprise then that the likes of Sean Cronnin and his ilk continue to walk about with impunity? Is hiding evidence, allowing bigotry and racism to influence prosecutions, patent misconduct in investigations or (God forbid)exposing oneself to unwitting bystanders just a "lapse of judgment." At what point does it cease to be "some isolated event?" I suppose the difference is monetary - when a private attorney crosses that line, it is assumed to be motivated by greed whereas when a government attorney does it, the motivation is....what...less nefarious?

Brillian juxtaposition: clearly you intended the question of whether Saidel's sentence was excessive to be rhetoric? Saidel's conduct as an attorney was abysmal. That conduct caused the attorney to lose his license, half-million dollars, gifts and most importantly: reputation. However, a prosecutor can abuse the very trust given to her by her position, or he can demonstrates a deep seeded racial bigotry and that IS just a "lapse of judgment?" That reputation can remain unblemished? If "such conduct diminishes the dignity of our criminal justice system and undermines respect for rule of law," why then don't we protect it and punish prosecutors when they engage in that conduct? Why do the court's "protect" the very people who are undermining that dignity but rail the same professionals who also fail, but who fail on the other side of the courtroom? Is it any surprise then that the likes of Sean Cronnin and his ilk continue to walk about with impunity? Is hiding evidence, allowing bigotry and racism to influence prosecutions, patent misconduct in investigations or (God forbid)exposing oneself to unwitting bystanders just a "lapse of judgment." At what point does it cease to be "some isolated event?" I suppose the difference is monetary - when a private attorney crosses that line, it is assumed to be motivated by greed whereas when a government attorney does it, the motivation is....what...less nefarious?

Brillian juxtaposition: clearly you intended the question of whether Saidel's sentence was excessive to be rhetoric? Saidel's conduct as an attorney was abysmal. That conduct caused the attorney to lose his license, half-million dollars, gifts and most importantly: reputation. However, a prosecutor can abuse the very trust given to her by her position, or he can demonstrates a deep seeded racial bigotry and that IS just a "lapse of judgment?" That reputation can remain unblemished? If "such conduct diminishes the dignity of our criminal justice system and undermines respect for rule of law," why then don't we protect it and punish prosecutors when they engage in that conduct? Why do the court's "protect" the very people who are undermining that dignity but rail the same professionals who also fail, but who fail on the other side of the courtroom? Is it any surprise then that the likes of Sean Cronnin and his ilk continue to walk about with impunity? Is hiding evidence, allowing bigotry and racism to influence prosecutions, patent misconduct in investigations or (God forbid)exposing oneself to unwitting bystanders just a "lapse of judgment." At what point does it cease to be "some isolated event?" I suppose the difference is monetary - when a private attorney crosses that line, it is assumed to be motivated by greed whereas when a government attorney does it, the motivation is....what...less nefarious?

I remember the 11th Circuit naming a Georgia State prosecutor who played fast and loose with the facts and engaged in very unethical conduct. See Stephens v. Hall, 407 F.3d 1195 (11th Cir. 2005). Her name was Nancy Grace. I wonder what ever became of her?

Many years ago the 11th Circuit named AUSA Richard Boscovich in the Alzate opinion, where he tried to play fast and loose with the facts until his case agent revealed the truth (after the case was over). Even at the oral argument, Boscovich was called out for hiding the truth from the panel.

I think a few months would have been more than sufficient given the circumstances of the case and the fact that he has lost his career. This was clearly the type of case that a lawyer could lose perspective in, not to mention the type of case that would daily if not hourly present the type of ethical challenges that many lawyers don't see in a decade. I don't think anyone thought this was a continuing pattern of conduct, but that being said, the word is out at least with Marra: he holds professionals like lawyers (and one who hope law enforcement officers and prosecutors) to a higher standard.

The Southern District of Florida blog was started by David Oscar Markus, who is a criminal trial and appellate lawyer in Miami, Florida. He frequently practices in federal courts around the country, including his hometown, the Southern District of Florida and the 11th Circuit Court of Appeals. He is a former law clerk to then-Chief Judge of the District, Edward B. Davis.